Mr Geoff Clark v Framlingham Aboriginal Trust

[2012] FWA 7103

[2012] FWA 7103

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Geoff Clark
v
Framlingham Aboriginal Trust
(U2012/6274)

COMMISSIONER ROE MELBOURNE, 20 AUGUST 2012

Unfair dismissal - extension of time for lodging application.

[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Geoff Clark (the Applicant) in respect of dismissal by Framlingham Aboriginal Trust (the Respondent).

[2] At the conclusion of the hearing I decided to reject the application for extension of time. This is an edited version of the reasons given on transcript.

[3] The Application was lodged on 20 March 2012. It is not in contest that the Applicant was advised by telephone message from Mr Thornloe for the Respondent on Friday 24 February 2012 that his employment was terminated.

[4] The Applicant argues that pursuant to Section 117 of the Fair Work Act 2009 (the Act) a person is not dismissed unless or until the employer has given the employee written notice of the termination and that written notice means delivering personally, leaving at the last known address or sending by pre-paid post. I am satisfied that when a person is dismissed is regulated by Part 3-2 of the Act and Section 386 and 394 in particular. The definitions section, Section 6, provides: “dismissed; see Section 386”. Section 117 is concerned with the notice of termination and failure to comply with Section 117 does not mean that an employee is not dismissed. I am also satisfied that registered post is a type of pre-paid post.

[5] The Application is therefore some 11 days out of time.

[6] The Applicant gave evidence that he did not receive the written notification of his termination of employment until Friday 9 March 2012. The letter was dated 24 February 2012. The Applicant does not reside in town. The Applicant gave evidence that he was absent between Friday 2 March and Friday 9 March at Halls Gap as part of a football trip for young aboriginal players. He gave evidence that he had not received the notice prior to leaving for the trip. The letter was sent by registered mail and when he returned from the trip his wife showed him a card that had been left under the door while he was away saying that there was registered mail for him which he then collected from the Warrnambool Post Office. The Applicant was not ill or incapacitated during this period.

[7] The Applicant then lodged the Application 10 days later on 20 March 2012.

[8] The Applicant had been suspended from his employment since 4 October 2011.

[9] The Applicant had been directed to provide evidence and submissions for the extension of time hearing by 27 July 2012. The material was provided on 16 August 2012.

[10] The Applicant (through legal representatives) on 15 August 2012 sought an adjournment on the grounds that the Applicant had become bankrupt in June 2009 and that the Applicant was seeking to have the bankruptcy discharged and that whilst the Applicant remained bankrupt he could not proceed with an unfair dismissal application. The Applicant referred to a decision of Senior Deputy President Acton in Hampson v Circuit Finance Australia Limited. 1 I responded to the Applicant saying that unless an extension of time is granted there is no valid unfair dismissal application and therefore any inability to apply is not relevant. I refused an adjournment. Although it is not necessary to determine the matter, I consider that given that reinstatement is the primary remedy under the Fair Work Act and that there is no indication that the Applicant is seeking anything other than reinstatement, there is some doubt as to whether there is a bar on the Applicant pursuing an application for unfair dismissal due to his bankruptcy.

[11] Mr Thornloe for the Respondent gave evidence which confirmed that the termination letter was sent on 24 February 2012 stating the reasons for the termination and that a telephone message was left on the same day advising the Applicant that his employment had been terminated. Mr Thornloe also gave evidence that he put the registered mail card under the mat at the front door of the Applicant’s residence on 28 February 2012. Mr Thornloe also produced the delivery confirmation advice in respect to the termination letter which suggests that the letter was received by the Applicant at the Warrnambool Post Office on 16 March 2012.

[12] Section 394(2) of the Fair Work Act 2009 (the Act) provides:

“(2) [Standard time limit] The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).”

[13] Subsection 394(3) provides:

“(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[14] I am satisfied in respect to criteria in Section 394(3)(b)-(f) that:

• On his own submission the Applicant was aware of the alleged dismissal on the day that it took place.



• The Applicant did take some action to dispute the dismissal by contacting the Respondent on 5 March 2012 to protest at the lack of notice and advice about the reasons for termination.



• There is no prejudice beyond the normal to the employer if the application for extension of time is granted given the relatively short period. The relevant information would still be available.



• The Applicant disputes the validity of the reasons given for termination. The letter of termination states that the Applicant was terminated for breaching the written direction not to engage in any work for any other employer during the period of his suspension. The Applicant says that he did not engage in any paid employment. It is therefore clear that there is no basis upon which I could conclude that the Application is without merit. The Respondent provides evidence in support of its contention that it had a valid reason to terminate the Applicant and why it believed that he had commenced other employment in contravention of the direction given. I have not had the benefit of all of the evidence. I therefore make no conclusions about the merits of the case except to observe that on the material before me the case is not without merit.



• There are no other persons of which I am aware in a similar position.

[15] The most relevant consideration in these circumstances is the criterion in Section 394(3)(a) that is the reasons for delay. I am not satisfied that the reasons for delay constitute exceptional circumstances either by themselves or in combination with the consideration of the other factors set out above.

[16] There is no suggestion of incapacity.

[17] The delay in receiving the written advice of the termination and the reasons for it does not explain why it was not possible for the Applicant to make an Application within 14 days. The Applicant knew about the dismissal from 24 February 2012.

[18] The absence on a football trip for a week does not explain the delay. The Application could have been made before the football camp. It might have been inconvenient but an application could also have been made on line at the post office during the time in Hall’s Gap. Alternatively the application could have been made on line immediately upon receipt of the letter which he says was on 9 March 2012. The Applicant disputed the termination through his solicitor on 5 March 2012.

[19] Even if I was to find that it was reasonable for the Applicant to wait for the written advice of the reasons for termination before lodging his Application, the Applicant has no explanation as to why it took more than 10 days between receipt of the written reasons and lodging the Application.

[20] The employer is required to provide written advice of the termination. The fact that the advice was provided by registered mail rather than pre-paid mail is not of any consequence. In my view registered mail is a form of pre-paid mail. Pre-paid mail is simply mail with postage paid, usually by a stamp.

[21] I accept that the “leap year” and the consequential additional day in February might in some circumstances contribute to an exceptional circumstance but that only accounts for one day.

[22] Taking all those matters into consideration which are specified in section 394(3) of the Act, I cannot find that there are exceptional circumstances which would justify me granting the extension of time for the application. I refuse the application for an extension of time in this matter and therefore the applicant is unable to further pursue this particular application. The Section 394 Application for unfair dismissal remedy is dismissed. The matter is now concluded.

COMMISSIONER

Appearances:

Mr G Doran appeared for the Applicant.

Ms F O’Brien and Ms L Kirwan appeared for the Respondent.

Hearing details:

2012
Melbourne
August 17

 1   PR967475 of 17 January 2006

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